Nuisance

Daniel Visser & Elspeth Reid (Eds) Private Law and Human Rights: Bringing Rights Home in Scotland and South Africa (2013) Edinburgh University Press ISBN 13: 9780748684175 ISBN 10: 0748684174

38 Pages Posted: 9 Jun 2013 Last revised: 21 Sep 2013

See all articles by Hanri Mostert

Hanri Mostert

University of Cape Town (UCT); University of Groningen

Date Written: March 19, 2013

Abstract

Does a constitutional order, one supporting human rights, change the way nuisance law works? In Scotland and South Africa nuisance law historically developed in very similar ways, and in both jurisdictions, the introduction of justiciable human rights has an impact on the general understanding of legal rules and principles. This essay focuses on the substantive test for nuisance to determine whether understandings of reasonableness and tolerability are influenced by a human-rights paradigm.

Assuming that in both South Africa and Scotland horizontal application of human rights provisions can be accepted, this essay shows how the common law on nuisance has and will be developed where appropriate, to comply with human-rights standards. Although neither jurisdiction has as yet had an opportunity to consider the application of human rights to the nuisance context, the analysis draws on (a) the experience in other jurisdictions, specifically case law of English, Dutch and European origin; (b) comparable contexts, specifically eviction law in South African and environmental regulation in Scotland.

In its conclusion, the essay comments on the roles of the state and the conceptualisation of engaged citizenship as it relates to nuisance law.

Keywords: Nuisance, neighbour law, constitutional law, human rights, South Africa, Scotland, reasonableness

Suggested Citation

Mostert, Hanri, Nuisance (March 19, 2013). Daniel Visser & Elspeth Reid (Eds) Private Law and Human Rights: Bringing Rights Home in Scotland and South Africa (2013) Edinburgh University Press ISBN 13: 9780748684175 ISBN 10: 0748684174 , Available at SSRN: https://ssrn.com/abstract=2275964

Hanri Mostert (Contact Author)

University of Cape Town (UCT) ( email )

Private Bag X3
Rondebosch, Western Cape 7701
South Africa

University of Groningen ( email )

P.O. Box 800
9700 AH Groningen, Groningen 9700 AV
Netherlands

HOME PAGE: http://www.rug.nl/gcl/visitorsprogramma/ProfMostert

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